E-Alert: Biden Announces Executive Orders & Anticipated Emergency Rule on Vaccination Requirements

President Biden issued two executive orders yesterday, September 9, 2021, in support of continuing efforts to fight the COVID-19 pandemic and also announced he’s directed the Department of Labor to issue additional emergency rules impacting private employers.

The first executive order requires COVID-19 vaccination for all Federal employees, subject to exceptions required by law such as accommodations for health or religious reasons. The Safer Federal Workforce Task Force (Task Force) is ordered to issue guidance by September 16, 2021, on implementation of this requirement for all federal agencies covered by this order. See Vaccination for Federal Employees for more information.

The second order was enacted to ensure that parties that contract with the Federal Government provide adequate COVID-19 safeguards to their workers performing work on or in connection with Federal Government contracts. The order is meant to decrease worker absence, reduce labor costs, and improve efficiency. The order applies to any new contract or new contract-like instruments and the solicitation for, extension, renewal, or exercise of an option on any such contract or contract-like instrument for a number of services provided by contractors. The order does not apply to grants, subcontracts solely for the provision of products, and other limited exceptions.

To that end, the second order extends the requirement of COVID-19 vaccinations to Federal contractors and subcontractors. The order does this by requiring that a clause be included in new Federal contracts that the contractor or any subcontractor shall comply with the Task Force’s guidance (which, as described above, will require vaccinations for Federal employees). The clause that contractors and subcontractors shall comply with the Task Force’s guidance must also be included in procurement solicitations and contracts. See COVID Safety Protocols for Federal Contractors for more information.

In addition, President Biden also announced that he has asked the Department of Labor and its Occupational Safety and Health Administration to issue an emergency temporary standard to carry out a mandate requiring all private employers with 100 or more employees to ensure their workers are fully vaccinated or require unvaccinated workers to produce a negative COVID-19 test at least once a week. The requirement could carry a $14,000 fine per violation and would affect two-thirds of the country's workforce, a senior administration official said. Additionally, it was announced OSHA will expand an existing Emergency Temporary Standard that will require private employers with 100 or more employees to provide paid time off to get vaccinated as well as to recover from vaccination.

The President also announced that workers in health care facilities that receive Medicare or Medicaid reimbursement and 30,000 Head Start teachers will be required to get vaccinated. He further called on governors to require vaccinations for teachers and school staff and called on large entertainment venues to require patrons be vaccinated or show a negative COVID-19 test for entry.

While the Department of Labor has not yet issued this emergency rule, we expect development in these areas in the near future including anticipated legal challenges.

CGWG will continue to monitor news and events that impact employers and the workforce. If you have any questions, please contact an attorney at our Firm.